Reprinted with permission from Alternet
Judge Emmet Sullivan is clearly not happy with Attorney General Bill Barr's handling of the Michael Flynn case.
In a new order on Wednesday, Sullivan appointed retired Judge John Gleeson to step into the case and argue against the Justice Department's motion to dismiss the charges. Barr has directed the department to withdraw its criminal charge against Flynn, the former national security adviser to President Donald Trump. But many legal analysts have argued that the arguments for dropping the charges of lying to the FBI, in the face of Flynn's guilty plea, are completely inconsistent with the department's practices. It's clear that Barr is carrying out his and Trump's mission to tear down the work of Special Counsel Robert Mueller, who first brought the charges against Flynn.
But since Flynn had already pleaded guilty, Sullivan found himself in an odd position. He has accepted Flynn's plea to the Justice Department's charges, but now both sides want out of the deal before sentencing. What can he do now?
That's where Gleeson comes in. Sullivan wants Gleeson to "present arguments in opposition to the government's Motion to Dismiss." The arguments "shall address whether the Court should issue an Order to Show Cause why Mr. Flynn should not be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401, Federal Rule of Criminal Procedure 42, the Court's inherent authority, and any other applicable statutes, rules, or controlling law," he wrote.
As national security journalist Marcy Wheeler has argued, Flynn's sworn statements before the court are now in direct contradiction with each other, indicating that he must have deceived the judge at some point. That's why he might have committed perjury.
Gleeson is a particularly interesting choice on Sullivan's part. He recently co-authored an op-ed in the Washington Post about the case, where he was sharply critical of Barr:
There has been nothing regular about the department's effort to dismiss the Flynn case. The record reeks of improper political influence. Hours after the career prosecutor abruptly withdrew, the department moved to dismiss the indictment in a filing signed only by an interim U.S. attorney, a former aide to Attorney General William P. Barr whom Barr had installed in the position months before.
The piece recommended Sullivan "appoint an independent attorney to act as a 'friend of the court,' ensuring a full, adversarial inquiry, as the judge in the Flynn case has done in other situations where the department abdicated its prosecutorial role."
The piece continued:
And the court could compel the department to reveal the one thing it has thus far refused to show — the actual evidence underlying the prosecution. To help Flynn, the department has made public documents it jealously guards in almost every other case, including confidential memos and internal deliberations. But it has balked at disclosing the transcripts of the very conversations with the Russian ambassador that Flynn admitted he lied about when the FBI interviewed him.
The department once argued that those conversations confirmed Flynn's guilt. It now claims those conversations were innocuous. By ordering disclosure of the transcripts, the court can empower the American public to judge for itself — and assess why the department is trying to walk away from this important case.
Flynn's guilt has already been adjudicated. So if the court finds dismissal would result in a miscarriage of justice, it can deny the motion, refuse to permit withdrawal of the guilty plea and proceed to sentencing.
Of course, the president himself still holds — forgive the term — a trump card. He can pardon Flynn's crime, if he wants to. And Sullivan's bold move is likely tempting him to do just that.
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